1

Filed 3/13/24 Arnold v. Antelope Manufactured Home Community CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

JANICE ELIZABETH ARNOLD et al.,

Plaintiffs and Respondents,

v.

ANTELOPE MANUFACTURED 

HOME COMMUNITY, LP et al.,

Defendants and Appellants.

C097244 

(Super. Ct. No. 34-2022-

00318831CU-BC-GDS)

Plaintiffs are current and former residents at a mobilehome park owned and 

operated by defendants Antelope Manufactured Home Community, LP and Antelope 

Manufactured Home Community GP LLC. After plaintiffs had financially committed to 

purchasing their mobilehomes located in the park, defendants required plaintiffs to sign 

leases with an arbitration provision as a condition of moving into the park. Many 

plaintiffs have not completed high school and have limited ability to understand English. 
2

The arbitration provision does not designate an arbitral forum or disclose a fee 

schedule and precludes joinder of actions, consolidation, and class actions.

Plaintiffs sued defendants for failure to properly maintain the park. Defendants

moved to compel arbitration. The trial court denied the motion. On appeal, defendants 

contend: (1) the Federal Arbitration Act applies to enforce the arbitration provision; 

(2) the Federal Arbitration Act preempts the Mobilehome Residency Law; (3) the 

arbitration provision is not unconscionable and, alternatively, any unconscionable portion 

is severable; and (4) even if the Federal Arbitration Act does not apply, California law 

requires enforcement of the arbitration provision. 

We conclude the arbitration provision is unconscionable and severance is 

inappropriate. As such, we need not reach defendants’ other claims. The trial court’s 

order is affirmed. 

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are current and former residents at the mobilehome park located in 

Antelope owned and operated by defendants. After plaintiffs had already made a 

downpayment for or purchased their mobilehomes located in the park, defendants asked

plaintiffs to sign the leases for the first time as a condition of moving into the park. 

Defendants’ manager told plaintiffs they must review the leases in the manager’s office 

and instructed plaintiffs to initial various provisions and sign. But there is evidence 

defendants did not inform plaintiffs that the arbitration provision in the leases was

optional, the terms of the leases were negotiable, they could have an attorney review the 

leases before signing, or they had 30 days to review the leases. Many plaintiffs have not 

completed high school. Although several plaintiffs’ primary language is Spanish and 

plaintiffs have limited ability to understand English, defendants did not provide them 

with a Spanish version of the leases or tell them they could take the leases home for 

translation. 
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On page 15 of the 21-page lease is an arbitration provision initialed by plaintiffs

that provides in pertinent part: 

38. DISPUTE RESOLUTION PROCESS: To ensure 

speedy resolution of disputes, neutral arbitration is used to 

resolve disputes. Arbitrator shall determine costs based on 

ability to pay. Arbitration applies to all claims for personal or 

bodily injury; and, claims for property damage and any

claimed loss or expense whatsoever (apart from damages 

incidental to an unlawful detainer action). Arbitration shall be 

under the Federal Arbitration Act (FAA), as mobilehomes and 

appurtenances are constructed, shipped, financed and leased in 

interstate commerce. 

A. The arbitrator shall determine all issues including 

whether the dispute may be arbitrated. State laws shall not 

apply. Commercial Rules of the American Arbitration 

Association (“AAA”) procedures apply. No joinder of actions 

or consolidation or class actions allowed. The award may be 

entered as a court judgment. Any alternative dispute resolution 

organization within 75 miles shall select 5 proposed arbitrators, 

each side strikes up to 2 names, the least expensive per hour of 

any remaining may be the arbitrators. . . . 

Plaintiffs also initialed an acknowledgement stating they “HAVE AT LEAST 30 

DAYS FROM THE DATE THE LEASE IS FIRST OFFERED . . . TO ACCEPT OR 

REJECT THE LEASE” and “HAVE BEEN ADVISED BY REPRESENTATIVES OF 

THE PARK THAT [THEY] HAVE THE RIGHT TO CONSULT A LAWYER AND 

GET THE LAWYER’S ADVICE BEFORE SIGNING THIS AGREEMENT. [¶] 

[THEY] HAVE BEEN GIVEN THE OPPORTUNITY TO SEEK LEGAL COUNSEL 

BEFORE SIGNING THIS AGREEMENT BUT CHOOSE TO DECLINE TO DO SO.” 

Plaintiffs sued defendants for failure to properly maintain common areas and 

facilities of the park, alleging causes of action for nuisance, breach of contract, breach of 

duty of good faith and fair dealing, negligence, breach of statutes, breach of warranty of 

habitability, breach of the covenant of quiet enjoyment, breach of unfair competition law,
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and declaratory and injunctive relief. Defendants moved to compel arbitration. In 

support of their opposition to the motion, plaintiffs declared they were not allowed 

sufficient time to review the leases, did not know the leases contained an arbitration 

provision, did not understand the terms of the leases, did not intend to give up their rights 

to a jury trial, and cannot afford to advance any arbitration costs or pay for arbitration. 

Plaintiffs’ counsel also submitted a declaration stating that JAMS, an arbitral forum with 

offices in Sacramento, charges a $3,000 filing fee that must be paid in full before any 

proceedings can start. She also noted other mobilehome residents incurred over $200,000 

in total costs in a similar action. In their reply, defendants responded to plaintiffs’ legal 

arguments. They did not submit any evidence about the cost of arbitration or plaintiffs’ 

ability to pay. 

The trial court denied the motion on the ground that the Federal Arbitration Act

does not apply, the leases are void under the Mobilehome Residency Law, and the 

arbitration provision is unconscionable. Defendants timely appealed. 

DISCUSSION

As an initial matter, we note the arbitration provision empowers the arbitrator to 

decide the issue of arbitrability. We nevertheless conclude we may review plaintiffs’ 

unconscionability claim because they contend that they never knowingly agreed to the 

arbitration provision. (Bruni v. Didion (2008) 160 Cal.App.4th 1272, 1287, 1290-1291 

[when the parties resisting arbitration claim that they never agreed to the arbitration 

provision, they cannot be required to arbitrate anything, including arbitrability, until a 

court has made a threshold determination that they did agree to arbitrate something].) 

We therefore turn to whether the arbitration provision is unconscionable.

A. General Principles of Unconscionability

Both California law and federal law favor enforcement of valid arbitration 

agreements. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 

24 Cal.4th 83, 97 (Armendariz).) But generally applicable contract defenses such as 
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unconscionability may be applied to invalidate an arbitration agreement without 

contravening the Federal Arbitration Act or California law. (OTO, L.L.C. v. Kho (2019) 

8 Cal.5th 111, 125.) “A contract is unconscionable if one of the parties lacked a 

meaningful choice in deciding whether to agree and the contract contains terms that are 

unreasonably favorable to the other party.” (Ibid.) “[T]he doctrine of unconscionability 

has both a procedural and a substantive element, the former focusing on oppression or 

surprise due to unequal bargaining power, the latter on overly harsh or one-sided results.” 

(Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1133.) Both procedural and 

substantive unconscionability must be present to establish unconscionability. 

(Armendariz, at p. 114.) “But they need not be present in the same degree. ‘Essentially a 

sliding scale is invoked which disregards the regularity of the procedural process of the 

contract formation, that creates the terms, in proportion to the greater harshness or 

unreasonableness of the substantive terms themselves.’ ” (Ibid.) 

The party asserting unconscionability bears the burden of proof. (OTO, L.L.C. v. 

Kho, supra, 8 Cal.5th at p. 126.) We review the unconscionability of an arbitration 

agreement de novo, applying general principles of California contract law. (Dougherty v. 

Roseville Heritage Partners (2020) 47 Cal.App.5th 93, 102.) 

B. Procedural Unconscionability

“Analysis of unconscionability begins with an inquiry into whether the contract 

was a contract of adhesion—i.e., a standardized contract, imposed upon the subscribing 

party without an opportunity to negotiate the terms.” (Flores v. Transamerica 

HomeFirst, Inc. (2001) 93 Cal.App.4th 846, 853.) “A finding that the contract is 

adhesive is ‘sufficient to establish some degree of procedural unconscionability.’ ” (Long 

Beach Unified School Dist. v. Margaret Williams, LLC (2019) 43 Cal.App.5th 87, 103.) 

But this alone is insufficient to render a contract unconscionable. (Malone v. Superior 

Court (2014) 226 Cal.App.4th 1551, 1561.) 
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“A higher degree of procedural unconscionability may be established through an 

additional showing of oppression or surprise.” (Long Beach Unified School Dist. v. 

Margaret Williams, LLC, supra, 43 Cal.App.5th at p. 103.) “The circumstances relevant 

to establishing oppression include, but are not limited to (1) the amount of time the party 

is given to consider the proposed contract; (2) the amount and type of pressure exerted on 

the party to sign the proposed contract; (3) the length of the proposed contract and the 

length and complexity of the challenged provision; (4) the education and experience of 

the party; and (5) whether the party’s review of the proposed contract was aided by an 

attorney.” (Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 

232 Cal.App.4th 1332, 1348.) “Procedural surprise focuses on whether the challenged 

term is hidden in a prolix printed form or is otherwise beyond the reasonable expectation 

of the weaker party.” (Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 

1305, 1321.)

Here, the leases are adhesive because they are standardized contracts drafted by 

defendants, who had superior bargaining power, and plaintiffs had no opportunity to 

negotiate. The circumstances surrounding the signing process also demonstrated 

oppression and an unfair surprise. 

Defendants exerted significant pressure on plaintiffs to sign the leases by telling 

them that they could not move into the mobilehomes they had already purchased unless 

they signed. No evidence suggests plaintiffs could readily have relocated their 

mobilehomes to another mobilehome park. (See Galland v. City of Clovis (2001) 

24 Cal.4th 1003, 1010 [noting “[t]he immobility of the mobilehome”].) Many plaintiffs 

do not have a high school education. But defendants did not explain the contents of the 

21-page lease, including the arbitration provision, to plaintiffs; nor did they tell plaintiffs 

that the arbitration provision was optional. Instead, defendants instructed plaintiffs to 

initial and sign the leases at the office. “Thus, . . . after [plaintiffs] had purchased a 

mobilehome or had made a significant commitment to purchase one, ‘they were left with 
7

no real practical choice other than to give in to the terms which were imposed by the 

owner of the land on which those mobilehomes were situated.’ ” (Penilla v. Westmont 

Corp. (2016) 3 Cal.App.5th 205, 215.(Penilla)) Indeed, even though the leases contain 

acknowledgements from plaintiffs that they were given 30 days to review and the 

opportunity to seek legal counsel, plaintiffs declared under penalty of perjury that neither 

was true. Defendants do not contest the accuracy of plaintiffs’ declarations on appeal 

other than stating that they are “self-serving.” 

Defendants assert, without any citations to the record, that they followed the 

requirement in the Mobilehome Residency Law and provided plaintiffs with the leases 

before the close of escrow. We do not consider this claim. (Tanguilig v. Valdez (2019) 

36 Cal.App.5th 514, 520 [“we may disregard factual contentions that are not supported 

by citations to the record”].) 

The amount of arbitration fees and the requirement to advance those fees also gave

plaintiffs “a nasty shock.” (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 

1572 (Parada).) The arbitration provision does not contain a fee schedule or disclose 

that a filing fee is required to commence an arbitration. Although the provision states

“Commercial Rules of the American Arbitration Association (‘AAA’) procedures apply,” 

it does not designate the American Arbitration Association as the forum. Instead, “[a]ny 

alternate dispute resolution organization within 75 miles” may hear the arbitration. But it 

is unclear whether, when a different arbitral forum hears the dispute, the forum applies 

the fees schedule set forth in its procedural rules or in the American Arbitration 

Association commercial rules. 

Defendants urge us not to be concerned with the lack of fee schedule because the 

arbitration provision provides “[a]rbitrator shall determine costs based on the ability to 

pay,” which they interpret to mean that defendants will bear the costs if plaintiffs are 

unable to pay. But this sentence is ambiguous because it is unclear whether “costs” 

include both the arbitrators’ fees and administrative fees, or administrative fees alone; it 
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is also unclear whether, upon an ability to pay finding, the arbitrator can require 

defendants to bear plaintiffs’ costs or merely lower plaintiffs’ costs. (See Penilla, supra, 

3 Cal.App.5th at pp. 216-217 [finding unfair surprise when arbitration provision 

contained confusing language].) Moreover, based on the only evidence in the record, for 

an arbitrator to consider plaintiffs’ ability to pay, plaintiffs must first advance $3,000 to 

commence the arbitration, an amount they cannot afford. They also cannot share the 

filing fee by joining or consolidating their actions because the arbitration provision 

explicitly states “[n]o joinder of actions or consolidation or class actions allowed.” 

Defendants do not provide a fee schedule of any other arbitral forum within 75 miles of 

Antelope that allows an arbitration to proceed with lower or no initial filing fee. 

Defendants also unfairly surprised the Spanish-speaking plaintiffs by hiding the 

arbitration provision in English. One of the plaintiffs told defendants’ manager about her 

difficulties in understanding English. But defendants did not provide a Spanish version 

of the leases, explain the contents of the leases in Spanish, or tell these plaintiffs they 

could take the leases home for translation. These facts support a finding of unfair 

surprise. (See Penilla, supra, 3 Cal.App.5th at p. 216 [mobilehome park owner unfairly 

surprised Spanish-speaking residents when the owners failed to provide a Spanish copy 

of the leases or advise the residents of the arbitration provision in the leases]; Carmona v. 

Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 85 [car wash company 

unfairly surprised Spanish-speaking employee by failing to translate the enforceability 

clause and confidentiality agreement into Spanish].) 

We reject defendants’ contention that plaintiffs voluntarily and knowingly agreed 

to the arbitration provision by checking a line at the beginning and initialing at the end of 

the provision. As discussed above, defendants instructed plaintiffs, who were under 

economic stress and had limited education, to initial the arbitration provision without 

explaining the provision to plaintiffs or allowing them sufficient time to review. The 

checks and initials by plaintiffs therefore “did not represent an authentic informed 
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choice.” (Gentry v. Superior Court (2007) 42 Cal.4th 443, 470, disapproved on another 

ground in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 366.) 

Based on the adhesiveness of the agreement and the oppression and surprise 

present, we conclude the arbitration provision evinced a high degree of procedural 

unconscionability. “Under the sliding scale approach, only a low level of substantive 

unconscionability is therefore required to render the arbitration agreement 

unenforceable.” (Dougherty v. Roseville Heritage Partners, supra, 47 Cal.App.5th at 

p. 104.) 

C. Substantive Unconscionability

“Substantive unconscionability pertains to the fairness of an agreement’s actual 

terms and to assessments of whether they are overly harsh or one-sided.” (Pinnacle 

Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 

246.) “[I]t is substantively unconscionable to require a consumer to give up the right to 

utilize the judicial system, while imposing arbitral forum fees that are prohibitively high.” 

(Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 90.) We consider “the amount of 

arbitration fees and costs, and the ability of the party resisting arbitration to pay them, as 

factors in assessing substantive unconscionability of a predispute arbitration agreement.” 

(Parada, supra, 176 Cal.App.4th at p. 1579.) 

Here, plaintiffs’ counsel submitted a declaration stating JAMS requires a $3,000 

filing fee to initiate an arbitration. While defendants contended at oral argument that 

cheaper arbitration services exist, they did not put into evidence a fee schedule of any 

alternative arbitration service. They also do not dispute that plaintiffs cannot afford the 

$3,000 JAMS filing fee. Although the arbitration clause gives the arbitrator the ability to 

allocate cost, it “provides little comfort to . . . plaintiffs here, who cannot afford to initiate 

the arbitration process in the first place.” (Gutierrez v. Autowest, Inc., supra, 

114 Cal.App.4th at p. 90.) Moreover, as discussed above, the fee allocation language is 
10

ambiguous, as it is unclear whether the arbitrator has the discretion to require defendants 

to bear all of plaintiffs’ fees upon an ability to pay finding. 

The arbitration provision also prohibits joinder of actions, consolidation, and class 

actions, preventing plaintiffs from sharing their arbitration fees. This leads to inefficient

results, as it requires plaintiffs to bring the same claims based on the same facts in 13 

different arbitrations before 13 different panels that may reach different conclusions. 

“The prohibition on consolidation or joinder merely drives up the cost per party of 

arbitration. For all parties . . . joinder or consolidation of multiple claims could provide a 

more cost-effective means of resolving multiple disputes. The primary, if not only, 

reason for . . . prohibiting consolidation or joinder of claims, and for splitting the costs of 

arbitration, must be to discourage or prevent [plaintiffs] from vindicating their rights.” 

(Parada, supra, 176 Cal.App.4th at pp. 1581-1582.) Defendants alleged at oral argument 

that each plaintiff’s claims need to be considered separately because they concern the 

plaintiff’s particular space in the park. But the complaint contained only causes of action 

by all plaintiffs against all defendants concerning common areas and facilities of the park. 

We do not see the need for these causes of action to be brought separately. 

Returning to the sliding scale measurement for unconscionability, we conclude the 

arbitration provision contains a high degree of procedural unconscionability and a certain 

degree of substantive unconscionability and is therefore unenforceable. In so concluding, 

we are mindful of the U.S. Supreme Court’s holding in AT&T Mobility LLC v. 

Concepcion (2011) 563 U.S. 333 and do not hold that the prohibition of joinder of 

actions, consolidation, and class actions renders the arbitration provision substantively 

unconscionable per se. Rather, given the circumstances here, “the prohibition of joinder 

[of actions, consolidation, and class action] and the lack of other cost-allocation terms 

evidences an intent on the part of [defendants] to ‘discourage or prevent . . . [plaintiffs] 

from vindicating their rights.’ (Parada, supra, 176 Cal.App.4th at p. 1582.)” (Penilla, 

supra, 3 Cal.App.5th at p. 219, fn. 11.) 
11

Having concluded the arbitration provision is unconscionable, we need not 

consider defendants’ other claims. (OTO, L.L.C. v. Kho, supra, 8 Cal.5th at p. 125 

[unconscionability may be applied to invalidate arbitration agreements without 

contravening the Federal Arbitration Act or California law]; see Knapp v. AT&T Wireless 

Services, Inc. (2011) 195 Cal.App.4th 932, 939 [“Under ordinary appellate review, we do 

not address the trial court’s reasoning and consider only whether the result was 

correct”].)1 

D. Severance

“[A]n arbitration agreement permeated by unconscionability, or one that contains 

unconscionable aspects that cannot be cured by severance, restriction, or duly authorized 

reformation, should not be enforced.” (Armendariz, supra, 24 Cal.4th at p. 126.) 

“[A]n unconscionable arbitration term should not be severed if drafted in bad faith 

because severing such a term and enforcing the arbitration provision would encourage 

drafters to overreach.” (Parada, supra, 176 Cal.App.4th at p. 1586.) For example, “[a]n 

employer will not be deterred from routinely inserting such a deliberately illegal clause 

into the arbitration agreements it mandates for its employees if it knows that the worst 

penalty for such illegality is the severance of the clause after the employee has litigated 

the matter. In that sense, the enforcement of a form arbitration agreement containing 

such a clause drafted in bad faith would be condoning, or at least not discouraging, an 

illegal scheme, and severance would be disfavored unless it were for some other reason 

in the interests of justice.” (Armendariz, supra, 24 Cal.4th at p. 124, fn. 13.) 

1

 Defendants’ request for judicial notice of Exhibits A, B, and C is denied because the 

exhibits are immaterial to our disposition. Defendants’ request for judicial notice of 

Exhibit D is denied as unnecessary because the document is already part of the record on 

appeal.
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We follow Parada in declining to sever the prohibition on joinder of actions, 

consolidations, and class actions from the arbitration provision. Defendants should have 

known that it would render initiating the arbitration so prohibitively expensive as to be 

unconscionable and would force plaintiffs to arbitrate the same claims on the same facts 

13 times. Defendants’ failure to justify the prohibition demonstrated it was included for 

the improper purpose of discouraging or preventing park residents from vindicating their 

rights. (Parada, supra, 176 Cal.App.4th at pp. 1586-1587.) Moreover, the ambiguous 

cost-shifting language does not save the arbitration provision when it can be interpreted 

to mean both that the arbitrator can and cannot assign costs to defendants,2 allowing 

defendants to choose the most convenient interpretation depending on whether they are in 

court or in arbitration. We cannot rewrite this language according to what we believe is 

fair and equitable. (Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 185-186.) 

2 As we explained earlier, it is unclear whether “costs” include both the arbitrators’ fees 

and administrative fees, or administrative fees alone. And it also unclear whether, upon 

an ability to pay finding, the arbitrator can require defendants to bear plaintiffs’ costs or 

merely lower plaintiffs’ costs. 
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DISPOSITION

The trial court’s order denying defendants’ motion to compel arbitration is 

affirmed. Plaintiffs shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

 /s/

MESIWALA, J.

I concur:

 /s/

MAURO, Acting P. J
1

RENNER, J., Dissenting.

The trial court denied defendants’ motion to compel arbitration because it 

determined the Federal Arbitration Act (FAA) does not apply to the lease agreements and 

the arbitration provision within these agreements is void under the Mobilehome 

Residency Law (Civ. Code, § 798 et seq.). Alternatively, the trial court concluded that, 

even if the FAA applies to the lease agreements, the arbitration provision is 

unenforceable because it is unconscionable. The court found the arbitration provision is 

substantively unconscionable because it undermines statutory protections under the 

Mobilehome Residency Law and lacks mutuality. The majority does not answer whether 

the FAA applies or discuss the Mobile Home Residency Law at all. (Maj. opn. ante, at p. 

2.) Rather, the majority affirms the trial court’s order based solely on an analysis of 

unconscionability that follows neither the path charted by the trial court nor any authority 

identified by the parties or this court. (Maj. opn. ante, at pp. 2, 9-10.) Accordingly, I 

must dissent.

The majority acknowledges that substantive unconscionability must be present for 

a court to refuse to enforce an arbitration provision under the doctrine of 

unconscionability. (Sanchez v. Valencia Holding Co. LLC (2015) 61 Cal.4th 899, 910.) 

(Maj. opn. ante, at p. 5.) The party asserting the defense of unconscionability bears the 

burden of proof. (Sanchez v. Valencia Holding Co. LLC, supra, at p. 911.) I agree that 

some degree of procedural unconscionability was demonstrated in this case, and thus 

limit my comments to the absence of any substantive unconscionability. 

“Substantive unconscionability examines the fairness of a contract’s terms. This 

analysis ‘ensures that contracts, particularly contracts of adhesion, do not impose terms 

that have been variously described as “ ‘ “overly harsh” ’ ” ’ [citation], “ ‘unduly 

oppressive’ ” [citation], “ ‘so one-sided as to “shock the conscience” ’ ” [citation], or 

“unfairly one-sided” [citation]. All of these formulations point to the central idea that the 
2

unconscionability doctrine is concerned not with “a simple old-fashioned bad bargain” 

[citation], but with terms that are “unreasonably favorable to the more powerful party.” ’ 

[Citation.] Unconscionable terms ‘ “impair the integrity of the bargaining process or 

otherwise contravene the public interest or public policy” ’ or attempt to impermissibly 

alter fundamental legal duties. [Citation.] They may include fine-print terms, 

unreasonably or unexpectedly harsh terms regarding price or other central aspects of the 

transaction, and terms that undermine the nondrafting party’s reasonable expectations.” 

(OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 129-130.) “ ‘[T]he paramount consideration 

in assessing [substantive] unconscionability is mutuality.’ ” (Nyulassy v. Lockheed 

Martin Corp. (2004) 120 Cal.App.4th 1267, 1281.) Lack of mutuality was one of two 

reasons the trial court identified for finding the arbitration provision substantively 

unconscionable. The majority does not even mention this concept. The majority’s brief 

analysis of substantive unconscionability covers only two topics: (1) plaintiffs’ counsel’s 

declaration stating that JAMS requires a $3,000 filing fee to initiate an arbitration, and (2) 

the arbitration provision’s prohibition on joinder of actions, consolidation, and class 

actions. (Maj. opn. ante, at pp. 9-10.) Neither point is persuasive and neither discussion 

follows the controlling precedent.

Plaintiffs did not argue on appeal or in the trial court that the potential filing fees 

rendered the arbitration provision substantively unconscionable, and I cannot conclude 

plaintiffs inadvertently demonstrated they did. The arbitration provision states that the 

“Commercial Rules of the American Arbitration Association (‘AAA’) procedures apply” 

and appears to permit the parties to use any dispute resolution organization within 75 

miles. Plaintiffs provided no explanation as to how JAMS was selected as an example 

dispute resolution organization or how it differed from the others within a 75-mile radius. 

I thus cannot find the notion that JAMS requires a $3,000 filing fee in non-consumer 

matters involving three or more parties establishes the agreement will impose 

unreasonable costs on the plaintiffs. The majority has improperly placed the burden on 
3

the opposing party on this issue. They criticize defendants for not putting into evidence a 

fee schedule for any alternative arbitration service or disputing that plaintiffs “cannot 

afford the $3,000 JAMS filing fee.”1 (Maj. opn. ante, at p. 9.) But it was not defendants’ 

burden to show the substantive unconscionability of the potential fees—it was plaintiffs’ 

burden, and they failed to meet it. I disagree with the majority’s conclusion that the 

evidence of the amount arbitration fees charged by one possible alternative dispute 

organization supports a finding of substantive unconscionability. (Maj. opn. ante, at p. 

9.) This leaves only the prohibition on joinder of actions, consolidation, and class actions 

to consider. 

Plaintiffs have argued that the arbitration provision’s prohibition on consolidation 

and joinder supports a finding of substantive unconscionability. Plaintiffs argue the cost 

to arbitrate is prohibitively high for individuals due to the need to hire experts. The trial 

court expressly did not consider this argument. Again, I cannot conclude plaintiffs met 

their burden. Plaintiffs’ counsel declared that “[t]he costs and fees to litigate and try a 

[failure-to maintain lawsuit] can be prohibitively high for any one individual. For 

example, in a similar case in San Jose involving over 60 plaintiffs, Andrade v. MHC 

Operating Ltd. P’hip, aka Equity Lifestyle Properties, Inc., Plaintiffs incurred 

$157,213.60 in expert witness fees. In another failure-to-maintain case in San Diego 

involving 69 plaintiffs, Aranda v. Terrace View Partners, L.P., et al., plaintiffs incurred 

over $200,000 in costs, much of which were expert fees. Under the circumstances, 

arbitration proceedings of a subset of the 32 Plaintiffs herein would be very expensive 

and economically impractical.” It is not clear whether plaintiffs’ counsel was describing 

other arbitrations or other court trials or both. As a general matter, one of the benefits of 

1

In half of the 12 declarations submitted by plaintiffs, the plaintiff declared, “I cannot 

afford to advance any costs or pay for arbitration.” In the other half, the plaintiff said 

nothing about costs or ability to pay. 
4

arbitration is lower costs in comparison to court proceedings. (AT&T Mobility LLC v. 

Concepcion (2011) 563 U.S. 333, 345, 348.) I cannot conclude plaintiffs demonstrated 

the costs of arbitrating their dispute would be higher than the costs of litigating in court. 

The majority and plaintiffs rely on an opinion that pre-dates Concepcion for the idea that 

a prohibition on consolidation or joinder “merely drives up the cost per party of 

arbitration.” (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1581.) (Maj. opn. 

ante, at p. 10.) The U.S. Supreme Court in Concepcion rejected an argument that 

allowing class proceedings in arbitration is “necessary to prosecute small-dollar claims 

that might otherwise slip through the legal system. . . . States cannot require a procedure 

that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” (AT&T 

Mobility LLC v. Concepcion, supra, at p. 351.) Furthermore, no authority has been cited 

that supports the proposition than an arbitration provision can be found substantively 

unconscionable solely based on a prohibition of joinder, consolidation, or class actions.

There is, however, authority for the proposition that it cannot be. (See, e.g., Penilla v. 

Westmont Corp. (2016) 3 Cal.App.5th 205, 219, fn. 11 [“We do not hold that the 

prohibition of joinder renders the contract unenforceable”]; Sanchez v. Carmax Auto 

Superstores California, LLC (2014) 224 Cal.App.4th 398, 408 [prohibition on 

consolidation of claims of different employees into one proceeding was not 

unconscionable].) Nonetheless, the majority declares: “We do not see the need for these 

causes of action to be brought separately.” (Maj. opn. ante, at p. 10.) The majority has 

not persuaded me that this court is free to make such a declaration after Concepcion, nor 

does the majority persuade me that if I could find the prohibition on consolidation and 

joinder unconscionable in this case, I could conclude that the unconscionability is not 

saved by severance. 
5

Because the majority has advanced no reason I may use to affirm the trial court’s 

ruling, I dissent. 

/s/

RENNER, J.